CRAIG MUELLER, Plaintiff-Appellee, vs. RICHARD HAMMANN, Defendant-Appellant, and WILLIAM C. HAMMANN, and MICHELLE HAMMANN, Defendants.
APPEAL NOS. C-120799, C-130231; TRIAL NO. A-1206733
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
November 20, 2013
[Cite as Mueller v. Hammann, 2013-Ohio-5098.]
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: November 20, 2013
Ronna S. Lucas and John E. Stillpass, for Plaintiff-Appellee,
William J. Mitchell and Ginger S. Bock, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
{¶1} Defendant-appellant Richard Hammann appeals from the trial court‘s order entering a default judgment against him and awarding plaintiff-appellee Craig Mueller over $300,000 in damages. Richard Hammann also appeals from the court‘s denial of his
Facts
{¶2} Mueller obtained a $307,082.06 judgment against Richard Hammann‘s brother, William Hammann, but was unable to collect. He later sued Richard and William, claiming that the brothers had engaged in a fraudulent transfer of 49 shares in Hammann Enterprises from William to Richard in an attempt to shield this asset from the judgment. Mueller also alleged that Richard, William, and William‘s wife, Michelle Hammann, had conspired to abscond with and to shield William‘s assets.
{¶3} Richard failed to respond to the lawsuit. On the day that his answer to Mueller‘s complaint was due, attorney John Treleven contacted plaintiff‘s counsel, Ronna Lucas, and asked whether Lucas would agree to an extension if Richard were to retain Treleven. Lucas answered that she would not. Richard did not retain Treleven, and no answer or other pleading was ever filed by or on behalf of Richard. Approximately a week after Richard‘s answer was due, Mueller moved the court for a default judgment. Mueller did not serve Richard with the motion.
{¶5} A short time later, the trial court entered a default judgment against Richard. Richard moved the court to set aside the judgment under
The Default Judgment
{¶6} In Richard‘s first assignment of error, he claims that the trial court‘s entry of a default judgment must be reversed because Mueller had never served Richard with a copy of his motion for a default judgment.
{¶7} Richard asserts that we review his assigned error under the standard set forth by this court in Fid. Fed. Sav. Bank v. Williamson, 1st Dist. Hamilton No. C-940290, 1996 Ohio App. LEXIS 2620 (June 26, 1996). Specifically, Richard claims that, pursuant to Williamson, “an appeal from a default judgment entitles the appellant to a review of any asserted procedural or substantive error coalescing in the entry of that judgment.” Id. at *14. But this language does not set forth a standard of review. It instead merely states what type of error an appellant may assert. It offers no guidance as to how that error should be analyzed. Based on the Ohio Supreme Court case of Zuljevic v. Midland-Ross Corp. Unicast Div., 62 Ohio St.2d 116, 403 N.E.2d 986 (1980), we hold that an abuse of discretion standard of review applies. In Zuljevic, the Supreme Court determined that ”
{¶8} In pertinent part,
{¶9} For purposes of the notice requirement in
{¶10} In this case, Richard never clearly indicated that he intended to defend Mueller‘s lawsuit. Treleven‘s phone call to Lucas posed a hypothetical question only, and Treleven had not been retained by Richard. Further, Richard did not express an
{¶11} We therefore hold that the notice requirement of
The Civ.R. 60(B) Motion and the Merits of the Case
{¶12} In his second assignment of error, Richard argues that the trial court erred when it denied his
{¶13} To prevail on a
{¶14} We acknowledge that Richard moved to set aside the default judgment within a reasonable time. And he arguably asserted facts amounting to a “meritorious defense.” However, Richard failed to establish that relief from the default judgment was appropriate as to the merits of Mueller‘s claims.
The Civ.R. 60(B) Motion and the Damage Award
{¶16} We do, however, find error in the trial court‘s denial of Richard‘s
{¶17} The trial court awarded Mueller “$196,242.94 plus interest from February 2, 2010 at the daily rate of $150.96 and $110,839.12, plus interest from February 2, 2010 at the daily rate of $82.20 plus post judgment interest at the rate of 12% from April 13, 2010 * * *.” This award mirrors the damages awarded in Mueller‘s lawsuit against William.
{¶19} In this case, the trial court did not conduct a hearing. Mueller contends that the trial court‘s award is otherwise supported by the record because the requested damages were specifically set forth in the complaint and because Mueller‘s judgment against William is a part of the record. However, we are unable to discern how the amount of damages that Mueller suffered in his case against William is tantamount to the amount of damages Mueller suffered as a result of his claims against Richard. Nor are we able to discern why Richard should be responsible for the pre- and post-judgment interest awarded in Mueller‘s lawsuit against William.
{¶20} For these reasons, we hold that the trial court abused its discretion in failing to grant, in part, Richard‘s
Conclusion
{¶21} Despite Richard‘s failure to appear in the trial court and to defend against Mueller‘s claims, since the record contains an inadequate basis to support the amount of damages awarded, we reverse in part the judgment of the trial court denying Richard‘s motion for relief from the default judgment. Accordingly, we remand the case to the trial court for a hearing on the issue of damages. The trial court‘s judgment is affirmed in all other respects.
Please note: The court has recorded its own entry on the date of the release of this opinion.